| | DIVISION 10. PREVENTION OF DOMESTIC VIOLENCE
PART 1. SHORT TITLE AND DEFINITIONS ............................ 6200-6219
PART 2. GENERAL PROVISIONS ..................................... 6220-6228
PART 3. EMERGENCY PROTECTIVE ORDERS
CHAPTER 1. GENERAL PROVISIONS ................................. 6240-6241
CHAPTER 2. ISSUANCE AND EFFECT OF EMERGENCY PROTECTIVE ORDER .. 6250-6257
CHAPTER 3. DUTIES OF LAW ENFORCEMENT OFFICER .................. 6270-6275
PART 4. PROTECTIVE ORDERS AND OTHER DOMESTIC VIOLENCE
PREVENTION ORDERS
CHAPTER 1. GENERAL PROVISIONS ................................. 6300-6306
CHAPTER 2. ISSUANCE OF ORDERS
Article 1. Ex Parte Orders ................................... 6320-6327
Article 2. Orders Issuable After Notice and Hearing .......... 6340-6346
Article 3. Orders Included in Judgment ....................... 6360-6361
CHAPTER 3. REGISTRATION AND ENFORCEMENT OF ORDERS ............. 6380-6389
PART 5. UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE
PROTECTION ORDERS ACT .................................. 6400-6409
6200. This division may be cited as the Domestic Violence
Prevention Act.
6201. Unless the provision or context otherwise requires, the
definitions in this part govern the construction of this code.
6203. For purposes of this act, "abuse" means any of the following:
(a) Intentionally or recklessly to cause or attempt to cause
bodily injury.
(b) Sexual assault.
(c) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another.
(d) To engage in any behavior that has been or could be enjoined
pursuant to Section 6320.
6205. "Affinity," when applied to the marriage relation, signifies
the connection existing in consequence of marriage between each of
the married persons and the blood relatives of the other.
6209. "Cohabitant" means a person who regularly resides in the
household. "Former cohabitant" means a person who formerly regularly
resided in the household.
6210. "Dating relationship" means frequent, intimate associations
primarily characterized by the expectation of affection or sexual
involvement independent of financial considerations.
6211. "Domestic violence" is abuse perpetrated against any of the
following persons:
(a) A spouse or former spouse.
(b) A cohabitant or former cohabitant, as defined in Section 6209.
(c) A person with whom the respondent is having or has had a
dating or engagement relationship.
(d) A person with whom the respondent has had a child, where the
presumption applies that the male parent is the father of the child
of the female parent under the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12).
(e) A child of a party or a child who is the subject of an action
under the Uniform Parentage Act, where the presumption applies that
the male parent is the father of the child to be protected.
(f) Any other person related by consanguinity or affinity within
the second degree.
6215. "Emergency protective order" means an order issued under Part
3 (commencing with Section 6240).
6218. "Protective order" means an order that includes any of the
following restraining orders, whether issued ex parte, after notice
and hearing, or in a judgment:
(a) An order described in Section 6320 enjoining specific acts of
abuse.
(b) An order described in Section 6321 excluding a person from a
dwelling.
(c) An order described in Section 6322 enjoining other specified
behavior.
6219. Subject to adequate, discretionary funding from a city or a
county, the superior courts in San Diego County and in Santa Clara
County may develop a demonstration project to identify the best
practices in civil, juvenile, and criminal court cases involving
domestic violence. The superior courts in any other county that is
able and willing may also participate in the demonstration project.
The superior courts participating in this demonstration project shall
report their findings and recommendations to the Judicial Council
and the Legislature on or before May 1, 2004. The Judicial Council
may make those recommendations available to any court or county.
6220. The purposes of this division are to prevent the recurrence
of acts of violence and sexual abuse and to provide for a separation
of the persons involved in the domestic violence for a period
sufficient to enable these persons to seek a resolution of the causes
of the violence.
6221. (a) Unless the provision or context otherwise requires, this
division applies to any order described in this division, whether the
order is issued in a proceeding brought pursuant to this division,
in an action brought pursuant to the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12), or in a proceeding
for dissolution of marriage, for nullity of marriage, or for legal
separation of the parties.
(b) Nothing in this division affects the jurisdiction of the
juvenile court.
(c) Any order issued by a court to which this division applies
shall be issued on forms adopted by the Judicial Council of
California and that have been approved by the Department of Justice
pursuant to subdivision (i) of Section 6380. However, the fact that
an order issued by a court pursuant to this section was not issued on
forms adopted by the Judicial Council and approved by the Department
of Justice shall not, in and of itself, make the order
unenforceable.
6222. There is no filing fee for an application, a responsive
pleading, or an order to show cause that seeks to obtain, modify, or
enforce a protective order or other order authorized by this division
when the request for the other order is necessary to obtain or give
effect to a protective order. There is no fee for a subpoena filed in
connection with that application, responsive pleading, or order to
show cause.
6223. A custody or visitation order issued in a proceeding brought
pursuant to this division is subject to Part 2 (commencing with
Section 3020) of Division 8 (custody of children).
6224. An order described in this division shall state on its face
the date of expiration of the order and the following statements in
substantially the following form:
"This order is effective when made. The law enforcement agency
shall enforce it immediately on receipt. It is enforceable anywhere
in California by any law enforcement agency that has received the
order or is shown a copy of the order. If proof of service on the
restrained person has not been received, the law enforcement agency
shall advise the restrained person of the terms of the order and then
shall enforce it."
6225. A petition for an order described in this division is valid
and the order is enforceable without explicitly stating the address
of the petitioner or the petitioner's place of residence, school,
employment, the place where the petitioner's child is provided child
care services, or the child's school.
6226. The Judicial Council shall prescribe the form of the orders
and any other documents required by this division and shall
promulgate forms and instructions for applying for orders described
in this division.
Domestic Violence Fillable Forms Online 6227. The remedies provided in this division are in addition to any
other civil or criminal remedies that may be available to the
petitioner.
6228. (a) State and local law enforcement agencies shall provide,
without charging a fee, one copy of all domestic violence incident
report face sheets, one copy of all domestic violence incident
reports, or both, to a victim of domestic violence, or to his or her
representative if the victim is deceased, as defined in subdivision
(g), upon request. For purposes of this section, "domestic violence"
has the definition given in Section 6211.
(b) A copy of a domestic violence incident report face sheet shall
be made available during regular business hours to a victim of
domestic violence or his or her representative no later than 48 hours
after being requested by the victim or his or her representative,
unless the state or local law enforcement agency informs the victim
or his or her representative of the reasons why, for good cause, the
domestic violence incident report face sheet is not available, in
which case the domestic violence incident report face sheet shall be
made available to the victim or his or her representative no later
than five working days after the request is made.
(c) A copy of the domestic violence incident report shall be made
available during regular business hours to a victim of domestic
violence or his or her representative no later than five working days
after being requested by a victim or his or her representative,
unless the state or local law enforcement agency informs the victim
or his or her representative of the reasons why, for good cause, the
domestic violence incident report is not available, in which case the
domestic violence incident report shall be made available to the
victim or his or her representative no later than 10 working days
after the request is made.
(d) Any person requesting copies under this section shall present
state or local law enforcement with his or her identification, such
as a current, valid driver's license, a state-issued identification
card, or a passport and, if the person is a representative of the
victim, a certified copy of the death certificate or other
satisfactory evidence of the death of the victim at the time a
request is made.
(e) This section shall apply to requests for face sheets or
reports made within five years from the date of completion of the
domestic violence incidence report.
(f) This section shall be known, and may be cited, as the Access
to Domestic Violence Reports Act of 1999.
(g) (1) For purposes of this section, a representative of the
victim means any of the following:
(A) The surviving spouse.
(B) A surviving child of the decedent who has attained 18 years of
age.
(C) A domestic partner, as defined in subdivision (a) of Section
297.
(D) A surviving parent of the decedent.
(E) A surviving adult relative.
(F) The public administrator if one has been appointed.
(2) A representative of the victim does not include any person who
has been convicted of murder in the first degree, as defined in
Section 189 of the Penal Code, of the victim, or any person
identified in the incident report face sheet as a suspect. Domestic
violence incident report face sheets may not be provided to a
representative of the victim unless the representative presents his
or her identification, such as a current, valid driver's license, a
state-issued identification card, or a passport and a certified copy
of the death certificate or other satisfactory evidence of the death
of the victim at the time of the request.
6240. As used in this part:
(a) "Judicial officer" means a judge, commissioner, or referee
designated under Section 6241.
(b) "Law enforcement officer" means one of the following officers
who requests or enforces an emergency protective order under this
part:
(1) A police officer.
(2) A sheriff's officer.
(3) A peace officer of the Department of the California Highway
Patrol.
(4) A peace officer of the University of California Police
Department.
(5) A peace officer of the California State University and College
Police Departments.
(6) A peace officer of the Department of Parks and Recreation, as
defined in subdivision (f) of Section 830.2 of the Penal Code.
(7) A peace officer of the Department of General Services of the
City of Los Angeles, as defined in subdivision (c) of Section 830.31
of the Penal Code.
(8) A housing authority patrol officer, as defined in subdivision
(d) of Section 830.31 of the Penal Code.
(9) A peace officer for a district attorney, as defined in Section
830.1 or 830.35 of the Penal Code.
(10) A parole officer, probation officer, or deputy probation
officer, as defined in Section 830.5 of the Penal Code.
(11) A peace officer of a California Community College police
department, as defined in subdivision (a) of Section 830.32.
(12) A peace officer employed by a police department of a school
district, as defined in subdivision (b) of Section 830.32.
(c) "Abduct" means take, entice away, keep, withhold, or conceal.
6241. The presiding judge of the superior court in each county
shall designate at least one judge, commissioner, or referee to be
reasonably available to issue orally, by telephone or otherwise,
emergency protective orders at all times whether or not the court is
in session.
6250. A judicial officer may issue an ex parte emergency protective
order where a law enforcement officer asserts reasonable grounds to
believe any of the following:
(a) That a person is in immediate and present danger of domestic
violence, based on the person's allegation of a recent incident of
abuse or threat of abuse by the person against whom the order is
sought.
(b) That a child is in immediate and present danger of abuse by a
family or household member, based on an allegation of a recent
incident of abuse or threat of abuse by the family or household
member.
(c) That a child is in immediate and present danger of being
abducted by a parent or relative, based on a reasonable belief that a
person has an intent to abduct the child or flee with the child from
the jurisdiction or based on an allegation of a recent threat to
abduct the child or flee with the child from the jurisdiction.
(d) That an elder or dependent adult is in immediate and present
danger of abuse as defined in Section 15610.07 of the Welfare and
Institutions Code, based on an allegation of a recent incident of
abuse or threat of abuse by the person against whom the order is
sought, except that no emergency protective order shall be issued
based solely on an allegation of financial abuse.
6250.3. An emergency protective order is valid only if it is issued
by a judicial officer after making the findings required by Section
6251 and pursuant to a specific request by a law enforcement officer.
6250.5. A judicial officer may issue an ex parte emergency
protective order to a peace officer defined in subdivisions (a) and
(b) of Section 830.32 if the issuance of that order is consistent
with an existing memorandum of understanding between the college or
school police department where the peace officer is employed and the
sheriff or police chief of the city in whose jurisdiction the peace
officer's college or school is located and the peace officer asserts
reasonable grounds to believe that there is a demonstrated threat to
campus safety.
6251. An emergency protective order may be issued only if the
judicial officer finds both of the following:
(a) That reasonable grounds have been asserted to believe that an
immediate and present danger of domestic violence exists, that a
child is in immediate and present danger of abuse or abduction, or
that an elder or dependent adult is in immediate and present danger
of abuse as defined in Section 15610.07 of the Welfare and
Institutions Code.
(b) That an emergency protective order is necessary to prevent the
occurrence or recurrence of domestic violence, child abuse, child
abduction, or abuse of an elder or dependent adult.
6252. An emergency protective order may include any of the
following specific orders, as appropriate:
(a) A protective order, as defined in Section 6218.
(b) An order determining the temporary care and control of any
minor child of the endangered person and the person against whom the
order is sought.
(c) An order authorized in Section 213.5 of the Welfare and
Institutions Code, including provisions placing the temporary care
and control of the endangered child and any other minor children in
the family or household with the parent or guardian of the endangered
child who is not a restrained party.
(d) An order determining the temporary care and control of any
minor child who is in danger of being abducted.
(e) An order authorized by Section 15657.03 of the Welfare and
Institutions Code.
6252.5. (a) The court shall order that any party enjoined pursuant
to an order issued under this part be prohibited from taking any
action to obtain the address or location of a protected party or a
protected party's family members, caretakers, or guardian, unless
there is good cause not to make that order.
(b) The Judicial Council shall promulgate forms necessary to
effectuate this section.
6253. An emergency protective order shall include all of the
following:
(a) A statement of the grounds asserted for the order.
(b) The date and time the order expires.
(c) The address of the superior court for the district or county
in which the endangered person or child in danger of being abducted
resides.
(d) The following statements, which shall be printed in English
and Spanish:
(1) "To the Protected Person: This order will last only until the
date and time noted above. If you wish to seek continuing
protection, you will have to apply for an order from the court, at
the address noted above. You may seek the advice of an attorney as
to any matter connected with your application for any future court
orders. The attorney should be consulted promptly so that the
attorney may assist you in making your application."
(2) "To the Restrained Person: This order will last until the
date and time noted above. The protected party may, however, obtain
a more permanent restraining order from the court. You may seek the
advice of an attorney as to any matter connected with the
application. The attorney should be consulted promptly so that the
attorney may assist you in responding to the application."
(e) In the case of an endangered child, the following statement,
which shall be printed in English and Spanish: "This order will last
only until the date and time noted above. You may apply for a more
permanent restraining order under Section 213.5 of the Welfare and
Institutions Code from the court at the address noted above. You may
seek the advice of an attorney in connection with the application
for a more permanent restraining order."
(f) In the case of a child in danger of being abducted, the
following statement, which shall be printed in English and Spanish:
"This order will last only until the date and time noted above. You
may apply for a child custody order from the court, at the address
noted above. You may seek the advice of an attorney as to any matter
connected with the application. The attorney should be consulted
promptly so that the attorney may assist you in responding to the
application."
6254. The fact that the endangered person has left the household to
avoid abuse does not affect the availability of an emergency
protective order.
6255. An emergency protective order shall be issued without
prejudice to any person.
6256. An emergency protective order expires at the earlier of the
following times:
(a) The close of judicial business on the fifth court day
following the day of its issuance.
(b) The seventh calendar day following the day of its issuance.
6257. If an emergency protective order concerns an endangered
child, the child's parent or guardian who is not a restrained person,
or a person having temporary custody of the endangered child, may
apply to the court for a restraining order under Section 213.5 of the
Welfare and Institutions Code.
6270. A law enforcement officer who requests an emergency
protective order shall reduce the order to writing and sign it.
6271. A law enforcement officer who requests an emergency
protective order shall do all of the following:
(a) Serve the order on the restrained person, if the restrained
person can reasonably be located.
(b) Give a copy of the order to the protected person or, if the
protected person is a minor child, to a parent or guardian of the
endangered child who is not a restrained person, if the parent or
guardian can reasonably be located, or to a person having temporary
custody of the endangered child.
(c) File a copy of the order with the court as soon as practicable
after issuance.
6272. (a) A law enforcement officer shall use every reasonable
means to enforce an emergency protective order.
(b) A law enforcement officer who acts in good faith to enforce an
emergency protective order is not civilly or criminally liable.
6273. A law enforcement officer who requests an emergency
protective order shall carry copies of the order while on duty.
6274. A peace officer, as defined in Section 830.1 or 830.2 of the
Penal Code, may seek an emergency protective order relating to
stalking under Section 646.91 of the Penal Code if the requirements
of that section are complied with.
6275. (a) A law enforcement officer who responds to a situation in
which the officer believes that there may be grounds for the issuance
of an emergency protective order pursuant to Section 6250 of this
code or Section 646.91 of the Penal Code, shall inform the person for
whom an emergency protective order may be sought, or, if that person
is a minor, his or her parent or guardian, provided that the parent
or guardian is not the person against whom the emergency protective
order may be obtained, that he or she may request the officer to
request an emergency protective order pursuant to this part.
(b) Notwithstanding Section 6250, and pursuant to this part, an
officer shall request an emergency protective order if the officer
believes that the person requesting an emergency protective order is
in immediate and present danger.
6300. An order may be issued under this part, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of domestic violence and ensuring a period of separation
of the persons involved, if an affidavit or, if necessary, an
affidavit and any additional information provided to the court
pursuant to Section 6306, shows, to the satisfaction of the court,
reasonable proof of a past act or acts of abuse.
6301. (a) An order under this part may be granted to any person
described in Section 6211, including a minor pursuant to subdivision
(b) of Section 372 of the Code of Civil Procedure.
(b) The right to petition for relief shall not be denied because
the petitioner has vacated the household to avoid abuse, and in the
case of a marital relationship, notwithstanding that a petition for
dissolution of marriage, for nullity of marriage, or for legal
separation of the parties has not been filed.
6302. An order issued under this part shall set forth on its face a
notice in substantially the following form:
"NOTICE TO RESTRAINED PERSON: If you do not appear at the court
hearing specified herein, the court may grant the requested orders
for a period of up to 3 years without further notice to you."
6303. (a) It is the function of a support person to provide moral
and emotional support for a person who alleges he or she is a victim
of domestic violence. The person who alleges that he or she is a
victim of domestic violence may select any individual to act as a
support person. No certification, training, or other special
qualification is required for an individual to act as a support
person. The support person shall assist the person in feeling more
confident that he or she will not be injured or threatened by the
other party during the proceedings where the person and the other
party must be present in close proximity. The support person is not
present as a legal adviser and shall not give legal advice.
(b) A support person shall be permitted to accompany either party
to any proceeding to obtain a protective order, as defined in Section
6218. Where the party is not represented by an attorney, the
support person may sit with the party at the table that is generally
reserved for the party and the party's attorney.
(c) Notwithstanding any other provision of law to the contrary, if
a court has issued a protective order, a support person shall be
permitted to accompany a party protected by the order during any
mediation orientation or mediation session, including separate
mediation sessions, held pursuant to a proceeding described in
Section 3021. The agency charged with providing family court
services shall advise the party protected by the order of the right
to have a support person during mediation. A mediator may exclude a
support person from a mediation session if the support person
participates in the mediation session, or acts as an advocate, or the
presence of a particular support person is disruptive or disrupts
the process of mediation. The presence of the support person does
not waive the confidentiality of the mediation, and the support
person is bound by the confidentiality of the mediation.
(d) In a proceeding subject to this section, a support person
shall be permitted to accompany a party in court where there are
allegations or threats of domestic violence and, where the party is
not represented by an attorney, may sit with the party at the table
that is generally reserved for the party and the party's attorney.
(e) Nothing in this section precludes a court from exercising its
discretion to remove a person from the courtroom when it would be in
the interest of justice to do so, or when the court believes the
person is prompting, swaying, or influencing the party protected by
the order.
6304. When making a protective order, as defined in Section 6218,
where both parties are present in court, the court shall inform both
the petitioner and the respondent of the terms of the order,
including notice that the respondent is prohibited from owning,
possessing, purchasing or receiving or attempting to own, possess,
purchase or receive a firearm, and including notice of the penalty
for violation.
6305. The court may not issue a mutual order enjoining the parties
from specific acts of abuse described in Section 6320 (a) unless both
parties personally appear and each party presents written evidence
of abuse or domestic violence and (b) the court makes detailed
findings of fact indicating that both parties acted primarily as
aggressors and that neither party acted primarily in self-defense.
6306. (a) Prior to a hearing on the issuance or denial of an order
under this part, the court shall ensure that a search is or has been
conducted to determine if the subject of the proposed order has any
prior criminal conviction for a violent felony specified in Section
667.5 of the Penal Code or a serious felony specified in Section
1192.7 of the Penal Code; has any misdemeanor conviction involving
domestic violence, weapons, or other violence; has any outstanding
warrant; is currently on parole or probation; or has any prior
restraining order or any violation of a prior restraining order. The
search shall be conducted of all records and data bases readily
available and reasonably accessible to the court, including, but not
limited to, the following:
(1) The Violent Crime Information Network (VCIN).
(2) The Supervised Release File.
(3) State summary criminal history information maintained by the
Department of Justice pursuant to Section 11105 of the Penal Code.
(4) The Federal Bureau of Investigation's nationwide data base.
(5) Locally maintained criminal history records or data bases.
However, a record or data base need not be searched if the
information available in that record or data base can be obtained as
a result of a search conducted in another record or data base.
(b) (1) Prior to deciding whether to issue an order under this
part or when determining appropriate temporary custody and visitation
orders, the court shall consider the following information obtained
pursuant to a search conducted under subdivision (a): any conviction
for a violent felony specified in Section 667.5 of the Penal Code or
a serious felony specified in Section 1192.7 of the Penal Code; any
misdemeanor conviction involving domestic violence, weapons, or other
violence; any outstanding warrant; parole or probation status; any
prior restraining order; and any violation of a prior restraining
order.
(2) Information obtained as a result of the search that does not
involve a conviction described in this subdivision shall not be
considered by the court in making a determination regarding the
issuance of an order pursuant to this part. That information shall
be destroyed and shall not become part of the public file in this or
any other civil proceeding.
(c) (1) After issuing its ruling, the court shall advise the
parties that they may request the information described in
subdivision (b) upon which the court relied. The court shall
admonish the party seeking the proposed order that it is unlawful,
pursuant to Sections 11142 and 13303 of the Penal Code, to willfully
release the information, except as authorized by law.
(2) Upon the request of either party to obtain the information
described in subdivision (b) upon which the court relied, the court
shall release the information to the parties or, upon either party's
request, to his or her attorney in that proceeding.
(3) The party seeking the proposed order may release the
information to his or her counsel, court personnel, and
court-appointed mediators for the purpose of seeking judicial review
of the court's order or for purposes of court proceedings under
Section 213.5 of the Welfare and Institutions Code.
(d) Any information obtained as a result of the search conducted
pursuant to subdivision (a) and relied upon by the court shall be
maintained in a confidential case file and shall not become part of
the public file in the proceeding or any other civil proceeding.
However, the contents of the confidential case file shall be
disclosed to the court-appointed mediator assigned to the case or to
a child custody evaluator appointed by the court pursuant to Section
3111 of the Family Code or Section 730 of the Evidence Code. All
court-appointed mediators and child custody evaluators appointed or
contracted by the court pursuant to Section 3111 of the Family Code
or Section 730 of the Evidence Code who may receive information from
the search conducted pursuant to subdivision (a) shall be subject to,
and shall comply with, the California Law Enforcement
Telecommunications System policies, practices, and procedures adopted
pursuant to Section 15160 of the Government Code.
(e) If the results of the search conducted pursuant to subdivision
(a) indicate that an outstanding warrant exists against the subject
of the order, the court shall order the clerk of the court to
immediately notify, by the most effective means available,
appropriate law enforcement officials of the issuance and contents of
any protective order and of any other information obtained through
the search that the court determines is appropriate. The law
enforcement officials so notified shall take all actions necessary to
execute any outstanding warrants or any other actions, with respect
to the restrained person, as appropriate and as soon as practicable.
(f) If the results of the search conducted pursuant to subdivision
(a) indicate that the subject of the order is currently on parole
or probation, the court shall order the clerk of the court to
immediately notify, by the most effective means available, the
appropriate parole or probation officer of the issuance and contents
of any protective order issued by the court and of any other
information obtained through the search that the court determines is
appropriate. That officer shall take all actions necessary to revoke
any parole or probation, or any other actions, with respect to the
restrained person, as appropriate and as soon as practicable.
(g) Nothing in this section shall delay the granting of an
application for an order that may otherwise be granted without the
information resulting from the data base search. If the court finds
that a protective order under this part should be granted on the
basis of the affidavit presented with the petition, the court shall
issue the protective order and shall then ensure that a search is
conducted pursuant to subdivision (a) prior to the hearing.
6320. (a) The court may issue an ex parte order enjoining a party
from molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of
the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of the other party,
and, in the discretion of the court, on a showing of good cause, of
other named family or household members.
(b) On a showing of good cause, the court may include in a
protective order a grant to the petitioner of the exclusive care,
possession, or control of any animal owned, possessed, leased, kept,
or held by either the petitioner or the respondent or a minor child
residing in the residence or household of either the petitioner or
the respondent. The court may order the respondent to stay away from
the animal and forbid the respondent from taking, transferring,
encumbering, concealing, molesting, attacking, striking, threatening,
harming, or otherwise disposing of the animal.
(c) On or before July 1, 2009, the Judicial Council shall modify
the criminal and civil court forms consistent with this section.
6320.5. (a) An order denying a petition for an ex parte order
pursuant to Section 6320 shall include the reasons for denying the
petition.
(b) An order denying a jurisdictionally adequate petition for an
ex parte order, pursuant to Section 6320, shall provide the
petitioner the right to a noticed hearing on the earliest date that
the business of the court will permit, but not later than 20 days or,
if good cause appears to the court, 25 days from the date of the
order. The petitioner shall serve on the respondent, at least 5 days
before the hearing, copies of all supporting papers filed with the
court, including the application and affidavits.
(c) Notwithstanding subdivision (b), upon the denial of the ex
parte order pursuant to Section 6320, the petitioner shall have the
option of waiving his or her right to a noticed hearing. However,
nothing in this section shall preclude a petitioner who waives his or
her right to a noticed hearing from refilling a new petition, without
prejudice, at a later time.
(d) The Judicial Council, on or before January 1, 2010, shall
develop a form to implement this section.
6321. (a) The court may issue an ex parte order excluding a party
from the family dwelling, the dwelling of the other party, the common
dwelling of both parties, or the dwelling of the person who has
care, custody, and control of a child to be protected from domestic
violence for the period of time and on the conditions the court
determines, regardless of which party holds legal or equitable title
or is the lessee of the dwelling.
(b) The court may issue an order under subdivision (a) only on a
showing of all of the following:
(1) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(2) That the party to be excluded has assaulted or threatens to
assault the other party or any other person under the care, custody,
and control of the other party, or any minor child of the parties or
of the other party.
(3) That physical or emotional harm would otherwise result to the
other party, to any person under the care, custody, and control of
the other party, or to any minor child of the parties or of the other
party.
6322. The court may issue an ex parte order enjoining a party from
specified behavior that the court determines is necessary to
effectuate orders under Section 6320 or 6321.
6322.5. Pursuant to Sections 4926 and 4977, the court may issue an
ex parte order prohibiting disclosure of the address or other
identifying information of a party, child, parent, guardian or other
caretaker of a child.
6322.7. (a) The court shall order that any party enjoined pursuant
to an order issued under this part be prohibited from taking any
action to obtain the address or location of a protected party or a
protected party's family members, caretakers, or guardian, unless
there is good cause not to make that order.
(b) The Judicial Council shall promulgate forms necessary to
effectuate this section.
6323. (a) Subject to Section 3064:
(1) The court may issue an ex parte order determining the
temporary custody and visitation of a minor child on the conditions
the court determines to a party who has established a parent and
child relationship pursuant to paragraph (2). The parties shall
inform the court if any custody or visitation orders have already
been issued in any other proceeding.
(2) (A) In making a determination of the best interests of the
child and in order to limit the child's exposure to potential
domestic violence and to ensure the safety of all family members, if
the party who has obtained the restraining order has established a
parent and child relationship and the other party has not established
that relationship, the court may award temporary sole legal and
physical custody to the party to whom the restraining order was
issued and may make an order of no visitation to the other party
pending the establishment of a parent and child relationship between
the child and the other party.
(B) A party may establish a parent and child relationship for
purposes of subparagraph (A) only by offering proof of any of the
following:
(i) The party gave birth to the child.
(ii) The child is conclusively presumed to be a child of the
marriage between the parties, pursuant to Section 7540, or the party
has been determined by a court to be a parent of the child, pursuant
to Section 7541.
(iii) Legal adoption or pending legal adoption of the child by the
party.
(iv) The party has signed a valid voluntary declaration of
paternity, which has been in effect more than 60 days prior to the
issuance of the restraining order, and that declaration has not been
rescinded or set aside.
(v) A determination made by the juvenile court that there is a
parent and child relationship between the party offering the proof
and the child.
(vi) A determination of paternity made in a proceeding to
determine custody or visitation in a case brought by the district
attorney pursuant to Section 11350.1 of the Welfare and Institutions
Code.
(vii) The party has been determined to be the parent of the child
through a proceeding under the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12).
(viii) Both parties stipulate, in writing or on the record, for
purposes of this proceeding, that they are the parents of the child.
(b) The court shall not make a finding of paternity in this
proceeding, and any order issued pursuant to this section shall be
without prejudice in any other action brought to establish a parent
and child relationship.
(c) When making any order for custody or visitation pursuant to
this section, the court's order shall specify the time, day, place,
and manner of transfer of the child for custody or visitation to
limit the child's exposure to potential domestic conflict or violence
and to ensure the safety of all family members. Where the court
finds a party is staying in a place designated as a shelter for
victims of domestic violence or other confidential location, the
court's order for time, day, place, and manner of transfer of the
child for custody or visitation shall be designed to prevent
disclosure of the location of the shelter or other confidential
location.
(d) When making an order for custody or visitation pursuant to
this section, the court shall consider whether the best interest of
the child, based upon the circumstances of the case, requires that
any visitation or custody arrangement shall be limited to situations
in which a third person, specified by the court, is present, or
whether visitation or custody shall be suspended or denied.
6324. The court may issue an ex parte order determining the
temporary use, possession, and control of real or personal property
of the parties and the payment of any liens or encumbrances coming
due during the period the order is in effect.
6325. The court may issue an ex parte order restraining a married
person from specified acts in relation to community, quasi-community,
and separate property as provided in Section 2045.
6326. An ex parte order under this article shall be issued or
denied on the same day that the application is submitted to the
court, unless the application is filed too late in the day to permit
effective review, in which case the order shall be issued or denied
on the next day of judicial business in sufficient time for the order
to be filed that day with the clerk of the court.
6327. Part 4 (commencing with Section 240) of Division 2 applies to
the issuance of any ex parte order under this article, other than an
order under Section 6322.5.
6340. (a) The court may issue any of the orders described in
Article 1 (commencing with Section 6320) after notice and a hearing.
When determining whether to make any orders under this subdivision,
the court shall consider whether failure to make any of these orders
may jeopardize the safety of the petitioner and the children for whom
the custody or visitation orders are sought. The Judicial Council
shall provide notice of this provision on any Judicial Council forms
related to this subdivision.
(b) The court may issue an order described in Section 6321
excluding a person from a dwelling if the court finds that physical
or emotional harm would otherwise result to the other party, to a
person under the care, custody, and control of the other party, or to
a minor child of the parties or of the other party.
6341. (a) If the parties are married to each other and no other
child support order exists or if there is a presumption under Section
7611 that the respondent is the natural father of a minor child and
the child is in the custody of the petitioner, after notice and a
hearing, the court may, if requested by the petitioner, order a party
to pay an amount necessary for the support and maintenance of the
child if the order would otherwise be authorized in an action brought
pursuant to Division 9 (commencing with Section 3500) or the Uniform
Parentage Act (Part 3 (commencing with Section 7600) of Division
12). When determining whether to make any orders under this
subdivision, the court shall consider whether failure to make any of
these orders may jeopardize the safety of the petitioner and the
children for whom child support is requested, including safety
concerns related to the financial needs of the petitioner and the
children. The Judicial Council shall provide notice of this provision
on any Judicial Council forms related to this subdivision.
(b) An order issued pursuant to subdivision (a) of this section
shall be without prejudice in an action brought pursuant to the
Uniform Parentage Act (Part 3 (commencing with Section 7600) of
Division 12).
(c) If the parties are married to each other and no spousal
support order exists, after notice and a hearing, the court may order
the respondent to pay spousal support in an amount, if any, that
would otherwise be authorized in an action pursuant to Part 1
(commencing with Section 3500) or Part 3 (commencing with Section
4300) of Division 9. When determining whether to make any orders
under this subdivision, the court shall consider whether failure to
make any of these orders may jeopardize the safety of the petitioner,
including safety concerns related to the financial needs of the
petitioner. The Judicial Council shall provide notice of this
provision on any Judicial Council forms related to this subdivision.
(d) An order issued pursuant to subdivision (c) shall be without
prejudice in a proceeding for dissolution of marriage, nullity of
marriage, or legal separation of the parties.
6342. (a) After notice and a hearing, the court may issue any of
the following orders:
(1) An order that restitution be paid to the petitioner for loss
of earnings and out-of-pocket expenses, including, but not limited
to, expenses for medical care and temporary housing, incurred as a
direct result of the abuse inflicted by the respondent or any actual
physical injuries sustained from the abuse.
(2) An order that restitution be paid by the petitioner for
out-of-pocket expenses incurred by a party as a result of an ex parte
order that is found by the court to have been issued on facts shown
at a noticed hearing to be insufficient to support the order.
(3) An order that restitution be paid by the respondent to any
public or private agency for the reasonable cost of providing
services to the petitioner required as a direct result of the abuse
inflicted by the respondent or any actual injuries sustained
there from.
(b) An order for restitution under this section shall not include
damages for pain and suffering.
6343. (a) After notice and a hearing, the court may issue an order
requiring the restrained party to participate in a batterer's program
approved by the probation department as provided in Section 1203.097
of the Penal Code.
(b) The courts shall, in consultation with local domestic violence
shelters and programs, develop a resource list of referrals to
appropriate community domestic violence programs and services to be
provided to each applicant for an order under this section.
6344. (a) After notice and a hearing, the court may issue an order
for the payment of attorney's fees and costs of the prevailing party.
(b) In any action in which the petitioner is the prevailing party
and cannot afford to pay for the attorney's fees and costs, the court
shall, if appropriate based on the parties' respective abilities to
pay, order that the respondent pay petitioner's attorney's fees and
costs for commencing and maintaining the proceeding. Whether the
respondent shall be ordered to pay attorney's fees and costs for the
prevailing petitioner, and what amount shall be paid, shall be
determined based upon (1) the respective incomes and needs of the
parties, and (2) any factors affecting the parties' respective
abilities to pay.
6345. (a) In the discretion of the court, the personal conduct,
stay-away, and residence exclusion orders contained in a court order
issued after notice and a hearing under this article may have a
duration of not more than five years, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. These
orders may be renewed, upon the request of a party, either for five
years or permanently, without a showing of any further abuse since
the issuance of the original order, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party.
(b) Notwithstanding subdivision (a), the duration of any orders,
other than the protective orders described in subdivision (a), that
are also contained in a court order issued after notice and a hearing
under this article, including, but not limited to, orders for
custody, visitation, support, and disposition of property, shall be
governed by the law relating to those specific subjects.
(c) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
Konrad v Richie We conclude the trial court should grant a requested extension unless the request is contested and the judge determines the protected party does not entertain a "reasonable apprehension" of future abusive conduct. 6346. The court may make appropriate custody and visitation orders
pursuant to the Uniform Parentage Act (Part 3 (commencing with
Section 7600) of Division 12) after notice and a hearing under this
section when the party who has requested custody or visitation has
not established a parent and child relationship under subparagraph
(B) of paragraph (2) of subdivision (a) of Section 6323, but has
taken steps to establish that relationship by filing an action under
the Uniform Parentage Act.
6360. A judgment entered in a proceeding for dissolution of
marriage, for nullity of marriage, for legal separation of the
parties, in a proceeding brought pursuant to this division, or in an
action brought pursuant to the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12) may include a
protective order as defined in Section 6218.
6361. If an order is included in a judgment pursuant to this
article, the judgment shall state on its face both of the following:
(a) Which provisions of the judgment are the orders.
(b) The date of expiration of the orders, which shall be not more
than five years from the date the judgment is issued, unless extended
by the court after notice and a hearing.
6380. (a) Each county, with the approval of the Department of
Justice, shall, by July 1, 1996, develop a procedure, using existing
systems, for the electronic transmission of data, as described in
subdivision (b), to the Department of Justice. The data shall be
electronically transmitted through the California Law Enforcement
Telecommunications System (CLETS) of the Department of Justice by law
enforcement personnel, or with the approval of the Department of
Justice, court personnel, or another appropriate agency capable of
maintaining and preserving the integrity of both the CLETS and the
Domestic Violence Restraining Order System, as described in
subdivision (e). Data entry is required to be entered only once under
the requirements of this section, unless the order is served at a
later time. A portion of all fees payable to the Department of
Justice under subdivision (a) of Section 1203.097 of the Penal Code
for the entry of the information required under this section, based
upon the proportion of the costs incurred by the local agency and
those incurred by the Department of Justice, shall be transferred to
the local agency actually providing the data. All data with respect
to criminal court protective orders issued, modified, extended, or
terminated under subdivision (g) of Section 136.2 of the Penal Code,
and all data filed with the court on the required Judicial Council
forms with respect to protective orders, including their issuance,
modification, extension, or termination, to which this division
applies pursuant to Section 6221, shall be transmitted by the court
or its designee within one business day to law enforcement personnel
by either one of the following methods:
(1) Transmitting a physical copy of the order to a local law
enforcement agency authorized by the Department of Justice to enter
orders into CLETS.
(2) With the approval of the Department of Justice, entering the
order into CLETS directly.
(b) Upon the issuance of a protective order to which this division
applies pursuant to Section 6221, or the issuance of a temporary
restraining order or injunction relating to harassment or domestic
violence pursuant to Section 527.6 or 527.8 of the Code of Civil
Procedure, or the issuance of a criminal court protective order under
subdivision (g) of Section 136.2 of the Penal Code, or the issuance
of a juvenile court restraining order related to domestic violence
pursuant to Section 213.5, 304, or 362.4 of the Welfare and
Institutions Code, or the issuance of a protective order pursuant to
Section 15657.03 of the Welfare and Institutions Code, or upon
registration with the court clerk of a domestic violence protective
or restraining order issued by the tribunal of another state, as
defined in Section 6401, and including any of the foregoing orders
issued in connection with an order for modification of a custody or
visitation order issued pursuant to a dissolution, legal separation,
nullity, or paternity proceeding the Department of Justice shall be
immediately notified of the contents of the order and the following
information:
(1) The name, race, date of birth, and other personal descriptive
information of the respondent as required by a form prescribed by the
Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including
stay-away, no-contact, residency exclusion, custody, and visitation
provisions of the order.
(6) The department or division number and the address of the
court.
(7) Whether or not the order was served upon the respondent.
(8) The terms and conditions of any restrictions on the ownership
or possession of firearms.
All available information shall be included; however, the
inability to provide all categories of information shall not delay
the entry of the information available.
(c) The information conveyed to the Department of Justice shall
also indicate whether the respondent was present in court to be
informed of the contents of the court order. The respondent's
presence in court shall provide proof of service of notice of the
terms of the protective order. The respondent's failure to appear
shall also be included in the information provided to the Department
of Justice.
(d) (1) Within one business day of service, any law enforcement
officer who served a protective order shall submit the proof of
service directly into the Department of Justice Domestic Violence
Restraining Order System, including his or her name and law
enforcement agency, and shall transmit the original proof of service
form to the issuing court.
(2) Within one business day of receipt of proof of service by a
person other than a law enforcement officer, the clerk of the court
shall submit the proof of service of a protective order directly into
the Department of Justice Domestic Violation Restraining Order
System, including the name of the person who served the order. If the
court is unable to provide this notification to the Department of
Justice by electronic transmission, the court shall, within one
business day of receipt, transmit a copy of the proof of service to a
local law enforcement agency. The local law enforcement agency shall
submit the proof of service directly into the Department of Justice
Domestic Violence Restraining Order System within one business day of
receipt from the court.
(e) The Department of Justice shall maintain a Domestic Violence
Restraining Order System and shall make available to court clerks and
law enforcement personnel, through computer access, all information
regarding the protective and restraining orders and injunctions
described in subdivision (b), whether or not served upon the
respondent.
(f) If a court issues a modification, extension, or termination of
a protective order, it shall be on forms adopted by the Judicial
Council of California and that have been approved by the Department
of Justice, and the transmitting agency for the county shall
immediately notify the Department of Justice, by electronic
transmission, of the terms of the modification, extension, or
termination.
(g) The Judicial Council shall assist local courts charged with
the responsibility for issuing protective orders by developing
informational packets describing the general procedures for obtaining
a domestic violence restraining order and indicating the appropriate
Judicial Council forms. The informational packets shall include a
design, that local courts shall complete, that describes local court
procedures and maps to enable applicants to locate filing windows and
appropriate courts, and shall also include information on how to
return proofs of service, including mailing addresses and fax
numbers. The court clerk shall provide a fee waiver form to all
applicants for domestic violence protective orders. The court clerk
shall provide all Judicial Council forms required by this chapter to
applicants free of charge. The informational packet shall also
contain a statement that the protective order is enforceable in any
state, as defined in Section 6401, and general information about
agencies in other jurisdictions that may be contacted regarding
enforcement of an order issued by a court of this state.
(h) For the purposes of this part, "electronic transmission" shall
include computer access through the California Law Enforcement
Telecommunications System (CLETS).
(i) Only protective and restraining orders issued on forms adopted
by the Judicial Council of California and that have been approved by
the Department of Justice shall be transmitted to the Department of
Justice. However, this provision shall not apply to a valid
protective or restraining order related to domestic or family
violence issued by a tribunal of another state, as defined in Section
6401. Those orders shall, upon request, be registered pursuant to
Section 6404.
6381. (a) Notwithstanding Section 6380 and subject to subdivision
(b), an order issued under this part is enforceable in any place in
this state.
(b) An order issued under this part is not enforceable by a law
enforcement agency of a political subdivision unless that law
enforcement agency has received a copy of the order, or the officer
enforcing the order has been shown a copy of the order or has
obtained information, through the Domestic Violence Restraining Order
System maintained by the Department of Justice, of the contents of
the order, as described in subdivision (b).
(c) The data contained in the Domestic Violence Restraining Order
System shall be deemed to be original, self-authenticating,
documentary evidence of the court orders. Oral notification of the
terms of the orders shall be sufficient notice for enforcement under
subdivision (g) of Section 136.2 and Section 273.6 of the Penal Code.
6382. Each appropriate law enforcement agency shall make available
to any law enforcement officer responding to the scene of reported
domestic violence, through an existing system for verification,
information as to the existence, terms, and current status of an
order issued under this part.
6383. (a) A temporary restraining order or emergency protective
order issued under this part shall, on request of the petitioner, be
served on the respondent, whether or not the respondent has been
taken into custody, by any law enforcement officer who is present at
the scene of reported domestic violence involving the parties to the
proceeding.
(b) The petitioner shall provide the officer with an endorsed copy
of the order and a proof of service that the officer shall complete
and transmit to the issuing court.
(c) It is a rebuttable presumption that the proof of service was
signed on the date of service.
(d) Upon receiving information at the scene of a domestic violence
incident that a protective order has been issued under this part, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately inquire of
the Department of Justice Domestic Violence Restraining Order System
to verify the existence of the order.
(e) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained and the officer shall, at that
time, also enforce the order. The law enforcement officer's verbal
notice of the terms of the order shall constitute service of the
order and is sufficient notice for the purposes of this section and
for the purposes of Section 273.6 and subdivision (g) of Section
12021 of the Penal Code.
(f) If a report is required under Section 13730 of the Penal Code,
or if no report is required, then in the daily incident log, the
officer shall provide the name and assignment of the officer
notifying the respondent pursuant to subdivision (e) and the case
number of the order.
(g) Upon service of the order outside of the court, a law
enforcement officer shall advise the respondent to go to the local
court to obtain a copy of the order containing the full terms and
conditions of the order.
(h) There shall be no civil liability on the part of, and no cause
of action for, false arrest or false imprisonment against any peace
officer who makes an arrest pursuant to a protective or restraining
order that is regular upon its face, if the peace officer in making
the arrest acts in good faith and has reasonable cause to believe
that the person against whom the order is issued has notice of the
order and has committed an act in violation of the order. If there is
more than one civil order regarding the same parties, the peace
officer shall enforce the order that was issued last. If there are
both civil and criminal orders regarding the same parties, the peace
officer shall enforce the criminal order issued last, subject to the
provisions of subdivisions (h) and (i) of Section 136.2 of the Penal
Code. Nothing in this section shall be deemed to exonerate a peace
officer from liability for the unreasonable use of force in the
enforcement of the order. The immunities afforded by this section
shall not affect the availability of any other immunity which may
apply, including, but not limited to, Sections 820.2 and 820.4 of the
Government Code.
6384. (a) If a person named in an order issued under this part
after a hearing has not been served personally with the order but has
received actual notice of the existence and substance of the order
through personal appearance in court to hear the terms of the order
from the court, no additional proof of service is required for
enforcement of the order.
If a person named in a temporary restraining order or emergency
protective order is personally served with the order and notice of
hearing with respect to a restraining order or protective order based
thereon, but the person does not appear at the hearing either in
person or by counsel, and the terms and conditions of the restraining
order or protective order are identical to the temporary restraining
or emergency protective order, except for the duration of the order,
the restraining order or protective order may be served on the
person by first-class mail sent to that person at the most current
address for the person available to the court.
(b) The judicial forms for orders issued under this part shall
contain a statement in substantially the following form:
"NO ADDITIONAL PROOF OF SERVICE IS REQUIRED IF THE FACE OF THIS
FORM INDICATES THAT BOTH PARTIES WERE PERSONALLY PRESENT AT THE
HEARING WHERE THE ORDER WAS ISSUED."
"IF YOU HAVE BEEN PERSONALLY SERVED WITH A TEMPORARY RESTRAINING
ORDER OR EMERGENCY PROTECTIVE ORDER AND NOTICE OF HEARING, BUT YOU DO
NOT APPEAR AT THE HEARING EITHER IN PERSON OR BY COUNSEL, AND A
RESTRAINING ORDER OR PROTECTIVE ORDER IS ISSUED AT THE HEARING WHICH
DOES NOT DIFFER FROM THE PRIOR TEMPORARY RESTRAINING ORDER OR
EMERGENCY PROTECTIVE ORDER, A COPY OF THE ORDER WILL BE SERVED UPON
YOU BY MAIL AT THE FOLLOWING ADDRESS ____. IF THAT ADDRESS IS NOT
CORRECT OR YOU WISH TO VERIFY THAT THE TEMPORARY OR EMERGENCY ORDER
WAS MADE PERMANENT WITHOUT SUBSTANTIVE CHANGE, CALL THE CLERK OF THE
COURT AT ____."
6385. (a) Proof of service of the protective order is not required
for the purposes of Section 6380 if the order indicates on its face
that both parties were personally present at the hearing at which the
order was issued and that, for the purpose of Section 6384, no proof
of service is required, or if the order was served by a law
enforcement officer pursuant to Section 6383.
(b) The failure of the petitioner to provide the Department of
Justice with the personal descriptive information regarding the
person restrained does not invalidate the protective order.
(c) There is no civil liability on the part of, and no cause of
action arises against, an employee of a local law enforcement agency,
a court, or the Department of Justice, acting within the scope of
employment, if a person described in subdivision (g) of Section 12021
of the Penal Code unlawfully purchases or receives or attempts to
purchase or receive a firearm and a person is injured by that firearm
or a person who is otherwise entitled to receive a firearm is denied
a firearm and either wrongful action is due to a failure of a court
to provide the notification provided for in this chapter.
6386. (a) The court may, in its discretion, appoint counsel to
represent the petitioner in a proceeding to enforce the terms of a
protective order, as defined in Section 6218.
(b) In a proceeding in which private counsel was appointed by the
court pursuant to subdivision (a), the court may order the respondent
to pay reasonable attorney's fees and costs incurred by the
petitioner.
6387. The court shall order the clerk of the court to provide to a
petitioner, without cost, five certified, stamped, and endorsed
copies of any order issued under this part, and of an extension,
modification, or termination of the order.
6388. A willful and knowing violation of a protective order, as
defined in Section 6218, is a crime punishable as provided by Section
273.6 of the Penal Code.
6389. (a) A person subject to a protective order, as defined in
Section 6218, shall not own, possess, purchase, or receive a firearm
while that protective order is in effect. Every person who owns,
possesses, purchases or receives, or attempts to purchase or receive
a firearm while the protective order is in effect is punishable
pursuant to subdivision (g) of Section 12021 of the Penal Code.
(b) On all forms providing notice that a protective order has been
requested or granted, the Judicial Council shall include a notice
that, upon service of the order, the respondent shall be ordered to
relinquish possession or control of any firearms and not to purchase
or receive or attempt to purchase or receive any firearms for a
period not to exceed the duration of the restraining order.
(c) (1) Upon issuance of a protective order, as defined in Section
6218, the court shall order the respondent to relinquish any firearm
in the respondent's immediate possession or control or subject to
the respondent's immediate possession or control.
(2) The relinquishment ordered pursuant to paragraph (1) shall
occur by immediately surrendering the firearm in a safe manner, upon
request of any law enforcement officer, to the control of the
officer, after being served with the protective order. Alternatively,
if no request is made by a law enforcement officer, the
relinquishment shall occur within 24 hours of being served with the
order, by either surrendering the firearm in a safe manner to the
control of local law enforcement officials, or by selling the firearm
to a licensed gun dealer, as specified in Section 12071 of the Penal
Code. The law enforcement officer or licensed gun dealer taking
possession of the firearm pursuant to this subdivision shall issue a
receipt to the person relinquishing the firearm at the time of
relinquishment. A person ordered to relinquish any firearm pursuant
to this subdivision shall file with the court that issued the
protective order, within 48 hours after being served with the order,
the receipt showing the firearm was surrendered to a local law
enforcement agency or sold to a licensed gun dealer. Failure to
timely file a receipt shall constitute a violation of the protective
order.
(3) The application forms for protective orders adopted by the
Judicial Council and approved by the Department of Justice shall be
amended to require the petitioner to describe the number, types, and
locations of any firearms presently known by the petitioner to be
possessed or controlled by the respondent.
(4) It is recommended that every law enforcement agency in the
state develop, adopt, and implement written policies and standards
for law enforcement officers who request immediate relinquishment of
firearms.
(d) If the respondent declines to relinquish possession of any
firearm based on the assertion of the right against
self-incrimination, as provided by the Fifth Amendment to the United
States Constitution and Section 15 of Article I of the California
Constitution, the court may grant use immunity for the act of
relinquishing the firearm required under this section.
(e) A local law enforcement agency may charge the respondent a fee
for the storage of any firearm pursuant to this section. This fee
shall not exceed the actual cost incurred by the local law
enforcement agency for the storage of the firearm. For purposes of
this subdivision, "actual cost" means expenses directly related to
taking possession of a firearm, storing the firearm, and surrendering
possession of the firearm to a licensed dealer as defined in Section
12071 of the Penal Code or to the respondent.
(f) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (c) shall state on its face that the
respondent is prohibited from owning, possessing, purchasing, or
receiving a firearm while the protective order is in effect and that
the firearm shall be relinquished to the local law enforcement agency
for that jurisdiction or sold to a licensed gun dealer, and that
proof of surrender or sale shall be filed with the court within a
specified period of receipt of the order. The order shall also state
on its face the expiration date for relinquishment. Nothing in this
section shall limit a respondent's right under existing law to
petition the court at a later date for modification of the order.
(g) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (c) shall prohibit the person from
possessing or controlling any firearm for the duration of the order.
At the expiration of the order, the local law enforcement agency
shall return possession of any surrendered firearm to the respondent,
within five days after the expiration of the relinquishment order,
unless the local law enforcement agency determines that (1) the
firearm has been stolen, (2) the respondent is prohibited from
possessing a firearm because the respondent is in any prohibited
class for the possession of firearms, as defined in Sections 12021
and 12021.1 of the Penal Code and Sections 8100 and 8103 of the
Welfare and Institutions Code, or (3) another successive restraining
order is used against the respondent under this section. If the local
law enforcement agency determines that the respondent is the legal
owner of any firearm deposited with the local law enforcement agency
and is prohibited from possessing any firearm, the respondent shall
be entitled to sell or transfer the firearm to a licensed dealer as
defined in Section 12071 of the Penal Code. If the firearm has been
stolen, the firearm shall be restored to the lawful owner upon his or
her identification of the firearm and proof of ownership.
(h) The court may, as part of the relinquishment order, grant an
exemption from the relinquishment requirements of this section for a
particular firearm if the respondent can show that a particular
firearm is necessary as a condition of continued employment and that
the current employer is unable to reassign the respondent to another
position where a firearm is unnecessary. If an exemption is granted
pursuant to this subdivision, the order shall provide that the
firearm shall be in the physical possession of the respondent only
during scheduled work hours and during travel to and from his or her
place of employment. In any case involving a peace officer who as a
condition of employment and whose personal safety depends on the
ability to carry a firearm, a court may allow the peace officer to
continue to carry a firearm, either on duty or off duty, if the court
finds by a preponderance of the evidence that the officer does not
pose a threat of harm. Prior to making this finding, the court shall
require a mandatory psychological evaluation of the peace officer and
may require the peace officer to enter into counseling or other
remedial treatment program to deal with any propensity for domestic
violence.
(i) During the period of the relinquishment order, a respondent is
entitled to make one sale of all firearms that are in the possession
of a local law enforcement agency pursuant to this section. A
licensed gun dealer, who presents a local law enforcement agency with
a bill of sale indicating that all firearms owned by the respondent
that are in the possession of the local law enforcement agency have
been sold by the respondent to the licensed gun dealer, shall be
given possession of those firearms, at the location where a
respondent's firearms are stored, within five days of presenting the
local law enforcement agency with a bill of sale.
(j) The disposition of any unclaimed property under this section
shall be made pursuant to Section 1413 of the Penal Code.
(k) The return of a firearm to any person pursuant to subdivision
(g) shall not be subject to the requirements of subdivision (d) of
Section 12072 of the Penal Code.
(l) If the respondent notifies the court that he or she owns a
firearm that is not in his or her immediate possession, the court may
limit the order to exclude that firearm if the judge is satisfied
the respondent is unable to gain access to that firearm while the
protective order is in effect.
(m) Any respondent to a protective order who violates any order
issued pursuant to this section shall be punished under the
provisions of subdivision (g) of Section 12021 of the Penal Code.
6400. This part may be cited as the Uniform Interstate Enforcement
of Domestic Violence Protection Orders Act.
6401. In this part:
(1) "Foreign protection order" means a protection order issued by
a tribunal of another state.
(2) "Issuing state" means the state whose tribunal issues a
protection order.
(3) "Mutual foreign protection order" means a foreign protection
order that includes provisions in favor of both the protected
individual seeking enforcement of the order and the respondent.
(4) "Protected individual" means an individual protected by a
protection order.
(5) "Protection order" means an injunction or other order, issued
by a tribunal under the domestic violence, family violence, or
antistalking laws of the issuing state, to prevent an individual from
engaging in violent or threatening acts against, harassment of,
contact or communication with, or physical proximity to, another
individual.
(6) "Respondent" means the individual against whom enforcement of
a protection order is sought.
(7) "State" means a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the
United States. The term includes an Indian tribe or band, or any
branch of the United States military, that has jurisdiction to issue
protection orders.
(8) "Tribunal" means a court, agency, or other entity authorized
by law to issue or modify a protection order.
6402. (a) A person authorized by the law of this state to seek
enforcement of a protection order may seek enforcement of a valid
foreign protection order in a tribunal of this state. The tribunal
shall enforce the terms of the order, including terms that provide
relief that a tribunal of this state would lack power to provide but
for this section. The tribunal shall enforce the order, whether the
order was obtained by independent action or in another proceeding, if
it is an order issued in response to a complaint, petition, or
motion filed by or on behalf of an individual seeking protection. In
a proceeding to enforce a foreign protection order, the tribunal
shall follow the procedures of this state for the enforcement of
protection orders.
(b) A tribunal of this state may not enforce a foreign protection
order issued by a tribunal of a state that does not recognize the
standing of a protected individual to seek enforcement of the order.
(c) A tribunal of this state shall enforce the provisions of a
valid foreign protection order which govern custody and visitation,
if the order was issued in accordance with the jurisdictional
requirements governing the issuance of custody and visitation orders
in the issuing state.
(d) A foreign protection order is valid if it meets all of the
following criteria:
(1) Identifies the protected individual and the respondent.
(2) Is currently in effect.
(3) Was issued by a tribunal that had jurisdiction over the
parties and subject matter under the law of the issuing state.
(4) Was issued after the respondent was given reasonable notice
and had an opportunity to be heard before the tribunal issued the
order or, in the case of an order ex parte, the respondent was given
notice and has had or will have an opportunity to be heard within a
reasonable time after the order was issued, in a manner consistent
with the rights of the respondent to due process.
(e) A foreign protection order valid on its face is prima facie
evidence of its validity.
(f) Absence of any of the criteria for validity of a foreign
protection order is an affirmative defense in an action seeking
enforcement of the order.
(g) A tribunal of this state may enforce provisions of a mutual
foreign protection order which favor a respondent only if both of the
following are true:
(1) The respondent filed a written pleading seeking a protection
order from the tribunal of the issuing state.
(2) The tribunal of the issuing state made specific findings in
favor of the respondent.
6403. (a) A law enforcement officer of this state, upon determining
that there is probable cause to believe that a valid foreign
protection order exists and that the order has been violated, shall
enforce the order as if it were the order of a tribunal of this
state. Presentation of a protection order that identifies both the
protected individual and the respondent and, on its face, is
currently in effect constitutes, in and of itself, probable cause to
believe that a valid foreign protection order exists. For the
purposes of this section, the protection order may be inscribed on a
tangible medium or may have been stored in an electronic or other
medium if it is retrievable in perceivable form. Presentation of a
certified copy of a protection order is not required for enforcement.
(b) If a foreign protection order is not presented, a law
enforcement officer of this state may consider other information in
determining whether there is probable cause to believe that a valid
foreign protection order exists.
(c) If a law enforcement officer of this state determines that an
otherwise valid foreign protection order cannot be enforced because
the respondent has not been notified or served with the order, the
officer shall inform the respondent of the order, make a reasonable
effort to serve the order upon the respondent, and allow the
respondent a reasonable opportunity to comply with the order before
enforcing the order. Verbal notice of the terms of the order is
sufficient notice for the purposes of this section.
(d) Registration or filing of an order in this state is not
required for the enforcement of a valid foreign protection order
pursuant to this part.
6404. (a) Any foreign protection order shall, upon request of the
person in possession of the order, be registered with a court of this
state in order to be entered in the Domestic Violence Restraining
Order System established under Section 6380. The Judicial Council
shall adopt rules of court to do the following:
(1) Set forth the process whereby a person in possession of a
foreign protection order may voluntarily register the order with a
court of this state for entry into the Domestic Violence Restraining
Order System.
(2) Require the sealing of foreign protection orders and provide
access only to law enforcement, the person who registered the order
upon written request with proof of identification, the defense after
arraignment on criminal charges involving an alleged violation of the
order, or upon further order of the court.
(b) No fee may be charged for the registration of a foreign
protection order. The court clerk shall provide all Judicial Council
forms required by this part to a person in possession of a foreign
protection order free of charge.
6405. There shall be no civil liability on the part of, and no
cause of action for false arrest or false imprisonment against, any
peace officer who makes an arrest pursuant to a foreign protection
order that is regular upon its face, if the peace officer in making
the arrest acts in good faith and has reasonable cause to believe
that the person against whom the order is issued has notice of the
order and has committed an act in violation of the order. If there
is more than one civil order regarding the same parties, the peace
officer shall enforce the order that was issued last. If there are
both civil and criminal orders regarding the same parties, the peace
officer shall enforce the criminal order issued last. Nothing in
this section shall be deemed to exonerate a peace officer from
liability for the unreasonable use of force in the enforcement of the
order. The immunities afforded by this section shall not affect the
availability of any other immunity that may apply, including, but
not limited to, Sections 820.2 and 820.4 of the Government Code.
6406. A protected individual who pursues remedies under this part
is not precluded from pursuing other legal or equitable remedies
against the respondent.
6407. In applying and construing this part, consideration shall be
given to the need to promote uniformity of the law with respect to
its subject matter among states that also have adopted the act cited
in Section 6400.
6408. If any provision of this part or its application to any
person or circumstance is held invalid, the invalidity does not
affect other provisions or applications of this part which can be
given effect without the invalid provision or application, and to
this end the provisions of this part are severable.
6409. This part applies to protection orders issued before January
1, 2002, and to continuing actions for enforcement of foreign
protection orders commenced before January 1, 2002. A request for
enforcement of a foreign protection order made on or after January 1,
2002, for violations of a foreign protection order occurring before
January 1, 2002, is governed by this part.
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